The Gorsuch Hearing Is A Joke. It’s Time To Change The Confirmation Process

03/23/2017 12:08 pm ETUpdated
Mar 23, 2017

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Judge Neil Gorsuch testifies during the third day of his Supreme Court confirmation hearing before the Senate Judiciary Committee.

Three days into the U.S. Senate’s confirmation hearing of Supreme Court nominee Neil Gorsuch, Republican Senator Lindsey Graham said what many Americans must be thinking, that “the whole nominating process has become a joke.” To say that the Supreme Court has become politicized is an understatement, as Graham pointed out by contrasting the relatively recent history of hearings for Justices Antonin Scalia and Ruth Bader Ginsburg with what Neil Gorsuch has endured since Monday, stating,

And what has happened over time is that somehow some way we’ve gone from [Antonin] Scalia, the originalist, getting 98 votes, Ginsburg, the bastion of liberalism on the court, well-qualified, getting 96 votes. What’s happened? Did the Constitution change? I don’t think so. I think politics has changed. I think it’s changed in a fashion that we should all be ashamed of as senators. And I think we’re doing great damage to the judiciary by politicizing every judicial nomination.

Graham, who has notably been willing to break from his party to publicly condemn Donald Trump, is right. Whereas judges used to be confirmed routinely as long as they had the requisite experience and qualifications, the modern confirmation process is elaborate, unsatisfying theater that follows the same beats.

Senators from the party backing the nominee lob softball questions and express dismay when their colleagues on the other side of the aisle dare pry into the taboo subject of how the judge views certain prominent cases. Senators from the opposing party use varying approaches to coax the nominee into expressing something resembling an opinion while the nominee tries to remain above the fray, appear non-partisan and master the art of answering questions without providing any substantive response, all of which have been on display this week.

When Senator Diane Feinstein questioned Gorsuch about Roe v. Wade, Gorsuch’s most damning admission was that the Roe v. Wade was indeed a Supreme Court case that is the law of the land. When Senator Sheldon Whitehouse pressed him on campaign finance laws and the support he has received from right-learning outside groups, Gorsuch said he was, “distressed to hear you think judges for the Supreme Court is an organ of a party,” as if he just beamed in from another planet, blissfully unaware that President Obama’s nominee Merrick Garland was denied a hearing by Republicans because of Garland’s political leanings.

This time around Democrats are on the attack and Republicans are on the defensive. But the roles reverse when a Democratic president’s nominee is in the lukewarm seat. The artificiality not only makes the process frustrating, but causes Americans to lose even more faith in a political system that is already marred by a startling lack of authenticity. It is time for a change.

The confirmation process is a farce and it needs to move in one of two directions to regain its integrity. One option is for confirmation hearings to be an apolitical inquiry into a nominee’s qualifications, by which standard Gorsuch, Elena Kagan, Sonia Sotomayor, or any nominee with considerable experience and sharp acumen should be confirmed. The only nominee in recent memory who might be properly denied a nomination under this process is Harriet Miers, President George W. Bush’s nominee who had no prior experience as a judge. Miers memorably withdrew her nomination before confirmation hearings occurred.

The second option is for the confirmation process to be transparently political, in which case a nominee’s opinion on seminal cases like Roe v. Wade or Citizens United v. FEC should be fair game. This option would give Americans more insight into a nominee’s judicial philosophy and offer a better understanding of how the nominee would be likely to rule on the most important cases that come before the Court. Constituents could reach out to senators and urge them to vote a certain way on a nominee based on what they learn through the confirmation process.

Though either option arguably has its downsides, both are undeniably better than the tragicomedy of the Gorsuch hearings, in which nearly every participant comes off as phony or unnecessarily restrained. Gorsuch pretends to be apolitical even though his previous decisions and political associations establish that he is a staunch conservative in the mold of Antonin Scalia. Democrats don’t ask the questions they really want to ask. Republicans pretend to be outraged at Democrats’ behavior even though they would do the same thing or worse if the tables were turned.

As famous or arguably infamous 5 to 4 decisions in cases like Bush v. Gore, Citizens United or Walmart v. Dukes have shown, one seat on the Supreme Court can shape the contours of our country for decades. Any confirmation process to fill that seat with a lifetime appointment should have the same integrity we desire from the Court itself.